By Barbara Rigaud
DMG JURIS Association

"The association is an agreement through which two or more people can join their knowledge or activities, in a permanent way, with an objective other than to share profits.

Its validity is ruled by the general principles of the law on contracts and obligations."[1]

Therefore, the association is a contract, ruled by the constitutional principle of freedom of association, by which each person is free to join or not to join an association of his choice and also, each association is free to accept or reject new members.

The modern times and, more particularly, the requirements of the associations’ economic activities have brought a breach to this fundamental principle. In fact, today it can be compulsory to join certain associations. Also, the refusal to accept a member can be unjustified in certain legal clauses.

These restrictions on the freedom of association seem, nevertheless, open to criticism.

Conditions of Adherence

Joining an association implies the respect of any contract’s conditions of validity: the new member’s capacities, the real and lawful objective of the organization and, most importantly, mutual consent.[2]

In fact, as the relationship between an association and its members is a contractual one,[3] the validity of the relationship depends upon the conjunction of two wishes: an application from the candidate and an acceptance from the organization, which is usually formalized by an approval.[4]

As a result of the condition of mutual consent, only the conjunction of the application and the approval forms a valid adherence.

Thus, particular attention must be paid to « legal members » of an association. These are generally private or business entities that the association solicits for support or guarantees and are, by their simple existence, members of the organization without prior approval.

One must nevertheless remember that they do not become members until having accepted this position. This is generally the case with any territorial community, which cannot become members until due deliberation by the deliberating organ.[5] The principle is the same for each member of the organization wishing to be admitted.

Nevertheless, the European Convention of Human Rights and fundamental freedom establishes the right not to belong to an association or to leave it.[8] The only exception permitted to this liberty concerns the obligations accepted by law and that are necessary measures in a democratic society, for national security, public security, crime prevention, protection of public health and moral or protection of the rights and liberty of others." Only a law fulfilling the above-mentioned objectives can impose the membership to an association. If no such law applies, no one can be forced to join an organization.

It is within this framework that certain members of the Community Hunting associations (ACCA) dispute their membership made mandatory by the law called "Verdeille law (loi Verdeille)" from 10 July 1964.

This law forces the owners of a piece of land or forest smaller than 20 hectares to bring enjoyment of their land to the Community Association. The association’s goal is to "favor the development of game and the destruction of detrimental animals in the territory, suppress poaching and educate its members of the respect of property and harvest, and, in general, to ensure an excellent technical organization of the hunt in order to give the hunters the best possible enjoyment of the sport."[9]

After noting that the creation of ACCA incurred in only 29 out of 93 regions and that the membership was mandatory only for one out of four land owners in a community, the Court decided that the restriction brought on the freedom of association by the French legislation cannot be considered proportionate to its legitimate goal.[10]

It is, in fact, difficult to defend the position that the destruction of detrimental animals would be a necessary measure to maintain national security and that the suppression of poaching would be a step forward in crime prevention.

The organization has the freedom to accept or refuse membership to an applicant. This a priori overall freedom (because of the contractual nature of the association contract) also has exceptions.

The Principle of the Approval

As a rule, an association has the right to freely choose its members, even if it has been advertising to attract applications.

The association by-laws determine liberally the conditions of admission for the members. For example, they can stipulate:

sponsoring of new candidates by members of the association;

a test period before attaining the status of member;

a majority or unanimous vote by the founder members.

The by-laws can also include a clause stipulating that a refusal of membership does not have to be justified.[11]

It is also possible for the by-laws to have no prior condition for admission, except the payment of a membership fee.

The associations’ liberty to accept or refuse the application of a new member is due to the intuitu personae character of the association contract. It implies that the association always reserves itself the right of refusal for any new member application, even in the case of by-laws without prior conditions.[12]

As an example, this liberty was acknowledged when an association published an ad in a tourist guide saying that it was admitting new members. The goal of the ad was to solicit new members but did not in any way mean that the association had to accept all applications.[13]

An association can reject an application without having to justify itself and without engaging its responsibility.[14]

Nevertheless, if the refusal is connected to offensive or harassing circumstances with regard to the candidate, this refusal can be considered abusive and could give the candidate right to damages. However, even in these circumstances, the principal of refusal cannot be challenged.

The Courts do not have the power to control the motives of a membership refusal; the rejected applicants have no means to appeal and cannot obtain damages.

Nevertheless, this liberty of admission is not absolute. If the by-laws institute an admission process, the judges can then ensure that these formalities are followed: the competence of the authority making the rejection decisions, summons of the candidates, etc.

It is the same if the by-laws state that a rejection of an application must be for a particular motive. The judges can then control the reality of the motive indicated or sanction a discretionary decision, but the person whose application has been rejected in accordance with the by-laws cannot obtain restitution for the damage suffered.

Exceptions to Membership Refusals

A priori, it seems that an association can freely refuse a new member. However, in some areas such a refusal can be sanctioned.

This is particularly the case when it is mandatory to belong to an association in order to practice certain activities (Sport federations, pigeon-fancier’s associations, employment associations, commerce and industry (ASSEDIC)).

An association with legal monopoly has to accept all membership applications when being a member of said association is a condition to engage in a certain activity. It can only refuse the application when there is a legitimate motive.[15]

Also, an association has to accept all membership applications when a refusal could have an anti-competitive objective or effect.[16]

The association can be called to appear at the Competition Council in case of anti-competition practices.[17]

Consequently, the question can be asked whether an association is allowed the ability to refuse a membership application without being criticized with regard to the legislation prohibiting the refusal to sell. In fact, how is it possible to distinguish between an association’s refusal to give a future member access to the properties and services offered within the scope of the association’s objective and the refusal to sell goods or services to a client/consumer?

Certain associations address themselves to anyone interested in the activities they offer. They intervene directly in areas in competition with trading companies, to the point that the Tax Administration considers them normal companies and taxes them accordingly. These members are considered more like clients or consumers than real members lead by the wish to be part of the association. In fact, one no more joins an association in order to engage in certain activities (except in the case of legal monopolies) but to participate in the General Meeting.

Therefore, would it not be possible to sanction an association, not on the grounds of non-respect of a contract offer, but on the incrimination of a refusal to sell or assist?

The High Court previously rejected the incrimination on these grounds in a case where an association had refused the application of a new member stating that "the association agreement is a private law contract subject to the principle of contractual liberty, except in case of restrictions in accordance with the law or in the actual by-laws." The Court rejected the incrimination, noting the principle of contractual liberty, the absence of proof of discrimination and the fact that the ad at the origin of the application did not constitute a pre-contractual offer.[18]

Yet, in our opinion, this case law will probably be subject to evolution.

Due to the fact that associations direct themselves more towards consumers or clients than to real members, they could be sanctioned for refusal to sell as a criminal offense.

This was the case for a private health insurance company who was sentenced due to such incrimination even though it was a non-profit organization, managed free of charge.[19]

An organizer of a professional show was sentenced on the same grounds, due to a rejection of an application from a company among the exhibitors.[20]

To the effect that associations today are considered professionals (see juris associations n°154/1997 p. 20) and they become obligated to pay commercial tax due to their competitive activities, it will very likely be possible to sentence an association, on the grounds of a refusal to sell, which is a criminal offense, for a refusal of admission.

A case law evolution to follow....

Notes

* Article originally published in the bi-monthly magazine juris associations, n° 204 and 205.